72 F.

3d 965

UNITED STATES of America, Appellee,

v.
William R. TIBOLT, Defendant, Appellant.
No. 94-2221.

United States Court of Appeals,

First Circuit.
Heard May 1, 1995.
Decided Dec. 29, 1995.

Anthony M. Cardinale, Boston, MA, with whom Nicholas J. DiMauro,

North Reading, MA, and Law Offices of Anthony M. Cardinale, Boston,
MA, were on brief, for appellant.
William C. Brown, Attorney, Appellate Division, Department of Justice,
with whom Donald K. Stern, United States Attorney, Boston, MA, was on
brief, for appellee.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR,
Circuit Judge.
CYR, Circuit Judge.

Following his conviction on a money laundering charge, 18 U.S.C. Sec. 1956,

in the United States District Court for the District of Massachusetts, William
Tibolt appeals two trial court rulings relating to incriminating financial records
seized from his residence in a warrantless search. Finding no error, we affirm.

2* BACKGROUND
3

Around mid-morning on July 27, 1992, a security alarm activated in the

Dombrowski residence located at 13 Old Salem Path in Gloucester,
Massachusetts. As the security alarm company--JK Security--was unable to
make telephone contact with the Dombrowski residence to determine whether
the alarm had been set off accidentally, it telephoned the Gloucester Police to
report the alarm. Officer Joseph Palazzola was dispatched to investigate the

alarm report at the Dombrowski residence, which is next door to the Tibolt
residence at 11 Old Salem Path.
4

Both residences are set well back from Old Salem Path and largely concealed
from view. Two driveways--separated by a tree and some shrubbery--lead to the
Tibolt home. The Tibolt mailbox--bearing "11 Old Salem Path"--is located
immediately to the right of the first Tibolt driveway. The Dombrowski
mailbox--marked "dombrowski 13"--is located a few feet left of the second
Tibolt driveway, more than 60 feet before the driveway entrance to the
Dombrowski residence at 13 Old Salem Path.

Upon observing the mailbox marked "13," Officer Palazzola mistakenly entered
the second driveway to the Tibolt residence. He checked the exterior of the
residence for signs of an attempted break, or burglary in progress. Although he
noted no signs of forced entry, Palazzola found an unlocked door on the rear
deck. He opened the door and called inside to alert any occupant, but received
no response. Given that the police had been requested to investigate the alarm,
that a door was unlocked, and that Palazzola had been unable to make contact
with anyone inside the house, he reasoned that the alarm might not have been
activated accidentally.

Palazzola promptly called for backup, and Officer Thomas Williams arrived
within five minutes. Williams likewise drove to the Tibolt residence rather than
the Dombrowski residence, because he saw Palazzola's squad car parked next
to the Tibolt residence. Williams immediately recognized the Tibolt residence
as having been the target of a prior investigation by a Gloucester Police drug
task force in which he had participated. Williams was unsure, however,
whether the target (viz., Tibolt) of the task force investigation still owned the
residence, or whether it was still under investigation for drug-related activities.

Palazzola and Williams decided to make an immediate warrantless entry

through the unlocked rear door, then looked about for possible explanations for
the alarm (e.g., any occupants, a burglar, "whatever"). Their search was limited
in scope, eschewing drawers, cabinets and containers. The officers "secured"
each room, to rule out the presence of intruders, captives, or injured occupants.
After sweep-searching the upper floors, the officers discovered a wellestablished marijuana growing facility in the basement, then left to obtain a
search warrant.1 Later, armed with a warrant, the officers searched the Tibolt
premises and seized incriminating financial records which Tibolt subsequently
sought to suppress on the ground that the search warrant was invalid because
the evidence relied on in the supporting affidavit was itself the fruit of the
earlier warrantless search. After hearing, the district court denied the motion to

suppress, without elaboration.

8

Following the verdict, Tibolt moved for a new trial on the ground that he had
uncovered "new" evidence relating to the suppression motion which would (1)
impeach Palazzola's suppression hearing testimony, (2) suggest that the
Gloucester Police deliberately planned to search the Tibolt residence, and (3)
demonstrate a Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 267677, 57 L.Ed.2d 667 (1978), violation. Gloucester Police Department "incident
cards," which record the time, date, desk officer, and location of police
assignments, disclosed that officers had been called to Old Salem Path on at
least fourteen prior occasions to investigate security alarms. The cards reflect
that there were three calls to "13 Old Salem Path" and ten others to "Old Salem
Path." One card, dating from 1990, indicates that Officer Joseph Palazzola had
been sent to the Dombrowski residence to investigate a security alarm. And two
cards indicate that a desk officer with the initials "J.P." had dispatched other
officers to "Old Salem Path." In addition, an affidavit by Officer Theodore
Lemieux, dated January 27, 1994--the day after the Tibolt suppression hearing-and submitted in support of a search warrant application in an unrelated
criminal proceeding, stated that

9 informant ... has provided information that led to the arrest and indictment of one
an
William Tibolt. In the investigation the informant provided detailed information in
regard to the location of an indoor growing operation that Mr. Tibolt had in his
home. The informant provided the name, address as well as other persons that were
involved in the marijuana growing operation. The informants [sic] also described the
home and the interior as well as a room in the center of the basement that [sic] the
growing operation was being conducted. (Emphasis added.)
10

But for the fact that it contains no indication as to the timing of the events
described in it, the Lemieux affidavit might conflict with the affidavit submitted
in support of the search warrant application of July 27, 1992, see supra note 1,
which described JK Security's call to the Gloucester Police Department, the
police response, and the officers' unexpected discovery of marijuana in the
Tibolt basement. After hearing, the district court denied the motion for new
trial. United States v. Tibolt, 868 F.Supp. 380, 381-83 (D.Mass.1994).

II
DISCUSSION
A. Motion to Suppress

11

Tibolt first challenges the district court's pretrial denial of the motion to

11

Tibolt first challenges the district court's pretrial denial of the motion to
suppress the primary evidence of money laundering: the financial records
seized from his residence on July 27, 1992. He contends that there was no
objectively reasonable basis for believing that a life-threatening burglary was in
progress, even assuming that Officer Palazzola reasonably had mistaken the
Tibolt residence for the Dombrowski residence. But see infra Section II.B. And
he argues that inspection of the exterior of the Tibolt residence revealed no
signs of forcible entry, and no open windows or doors. See Brief for Appellant
at 27-29 (citing United States v. Erickson, 991 F.2d 529 (9th Cir.1993)
(suppressing evidence seized in warrantless search of residence where officers
investigating burglar alarm observed no indication of forced entry)).
1. Substantive Law

12

A warrantless search of a private residence is presumptively unreasonable under

the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct.
1371, 1380, 63 L.Ed.2d 639 (1980). The government therefore must prove that
the initial search came within some recognized exception to the Fourth
Amendment warrant requirement. See United States v. Doward, 41 F.3d 789,
791 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1716, 131 L.Ed.2d 575
(1995). Generally speaking, absent probable cause and exigent circumstances
the Fourth Amendment bars warrantless, nonconsensual entries of private
residences. See United States v. Curzi, 867 F.2d 36, 41 (1st Cir.1989).2

13

Probable cause will be found to have been present if the officers at the scene
collectively possessed reasonably trustworthy information sufficient to warrant
a prudent policeman in believing that a criminal offense had been or was being
committed. See Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st Cir.1995),
cert. denied, --- U.S. ----, 116 S.Ct. 675, 133 L.Ed.2d 524 (1995); United States
v. Zurosky, 614 F.2d 779, 784 n. 2 (1st Cir.1979) (finding probable cause
where police investigated possible "breaking and entering" at warehouse), cert.
denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980) (citing Brinegar
v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879
(1949)). "In dealing with probable cause, ... as the very name implies, we deal
with probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act." Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328-29,
76 L.Ed.2d 527 (1983).

14

Exigent circumstances exist where law enforcement officers confront a

"compelling necessity for immediate action that w[ould] not brook the delay of
obtaining a warrant." United States v. Wilson, 36 F.3d 205, 209 (1st Cir.1994)

(citing United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980)); United States
v. Almonte, 952 F.2d 20, 22 (1st Cir.1991), cert. denied, 503 U.S. 1010, 112
S.Ct. 1776, 118 L.Ed.2d 434 (1992). Although "exigency" determinations
invariably are fact-intensive, see United States v. Donlin, 982 F.2d 31, 34 (1st
Cir.1992), "exigent circumstances" commonly include: "(1) 'hot pursuit' of a
fleeing felon; (2) threatened destruction of evidence inside a residence before a
warrant can be obtained; (3) a risk that the suspect may escape from the
residence undetected; or (4) a threat, posed by a suspect, to the lives or safety of
the public, the police officers, or to [an occupant]." Hegarty, 53 F.3d at 1374.
The "exigent circumstances" inquiry is limited to the objective facts reasonably
known to, or discoverable by, the officers at the time of the search. See Illinois
v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148
(1990) (upholding warrantless search where police officers reasonably, but
mistakenly, believed they had obtained valid "third-party consent" to search
residence from person with authority to consent) (citing Archibald v. Mosel,
677 F.2d 5 (1st Cir.1982) (invoking "good faith" principle under "exigent
circumstances" exception)).
2. Standard of Review
15

As mixed questions of law and fact, the "probable cause" and "exigent
circumstances" determinations require bifurcated review: whether a particular
set of circumstances gave rise to "probable cause" or "exigent circumstances" is
reviewed de novo and findings of fact are reviewed for clear error. United
States v. Goldman, 41 F.3d 785, 786 (1st Cir.1994) (probable cause), cert.
denied, --- U.S. ----, 115 S.Ct. 1321, 131 L.Ed.2d 201 (1995); United States v.
Gooch, 6 F.3d 673, 678 (9th Cir.1993) (exigent circumstances). Where, as here,
there are no explicit factual findings, the record below is assessed in the light
most favorable to the trial court ruling. See United States v. Baldacchino, 762
F.2d 170, 176 (1st Cir.1985).
3. Application of Law

16

Tibolt does not challenge the factual findings implicit in the district court
ruling, given that the evidence most central to the ruling--the police
descriptions relating to the alarm report, the locations of the mailboxes, the
unlocked door--is undisputed.3 Moreover, these implicit findings
unquestionably support the challenged legal conclusion that Officer Palazzola
had probable cause to believe a breaking and entering had been or was being
committed at the Tibolt residence.

17

A security alarm had been activated, and when JK Security placed a call to the

17

A security alarm had been activated, and when JK Security placed a call to the
Dombrowski residence, it had received no answer.4 These circumstances
severely undercut any likelihood that the security alarm had been activated
inadvertently by a resident. Moreover, upon his arrival approximately ten
minutes later, Palazzola checked all windows and doors at the Tibolt
residence.5 Instead of finding all doors secured, as one might reasonably expect
while the residents are away, he found an unlocked door on the rear deck and
received no response to his efforts to communicate with anyone who might be
inside. These circumstances significantly enhanced the likelihood of an
intruder.

18

For similar reasons, we conclude that Palazzola was presented with "exigent
circumstances" permitting an immediate warrantless entry. Without entering, he
could not know but what an intruder had managed to get into the residence, and
even injured or captured a resident, then fled; or had been caught off guard by
the police and remained in the residence with a forcibly detained resident. Even
the authorities cited by Tibolt acknowledge the potential exigencies attending
such circumstances. See Erickson, 991 F.2d at 533 ("In a wide variety of
contexts, this and other circuits have upheld warrantless searches conducted
during burglary investigations under the rubric of exigent circumstances.");
Commonwealth v. Fiore, 9 Mass.App.Ct. 618, 403 N.E.2d 953, 955 ("It seems
clear to us that a house break without more as set out in the affidavit raises the
possibility of danger to an occupant and of the continued presence of an
intruder and indicates the need to secure the premises. In such circumstances
'(t)he right of the police to enter and investigate in an emergency without the
accompanying intent to either search or arrest is inherent in the very nature of
their duties as peace officers.' ") (citation omitted), cert. denied, 449 U.S. 938,
101 S.Ct. 336, 66 L.Ed.2d 160 (1980). Hindsight discloses, of course, that
Palazzola was mistaken. Nevertheless, at the time, see Rodriguez, 497 U.S. at
186, 110 S.Ct. at 2800, an officer confronted with these circumstances
reasonably could have concluded that there was an imminent risk "to the lives
or safety of the public," Hegarty, 53 F.3d at 1374, or to an injured or
immobilized resident. See, e.g., Murdock v. Stout, 54 F.3d 1437, 1443 (9th
Cir.1995) (upholding warrantless search of residence following burglary report,
where investigating officers found some signs that resident might have been at
home when an intruder entered dwelling, and received no response to their
calls, thereby creating a "fair probability that ... a resident might be in need of
assistance") (distinguishing prior circuit precedent in United States v. Erickson,
991 F.2d 529 (9th Cir.1993)). Accordingly, the district court did not err in
denying the motion to suppress.

B. Motion for New Trial

19

We turn now to the district court ruling denying a new trial. Tibolt contends
that the "newly discovered" Gloucester Police "incident cards" and the
Lemieux affidavit support a rational inference that Officer Palazzola committed
perjury at the suppression hearing, in explaining that the misleading placement
of the Dombrowski mailbox at the opening of the second Tibolt driveway, and
his own unfamiliarity with the two residences, had caused him to go to the
Tibolt residence to investigate the reported alarm at the Dombrowski residence.
Tibolt maintains that the incident cards show that Palazzola had been to the
Dombrowski residence at least once before and, therefore, should have
recognized his mistake on this occasion. Further, he argues, the Lemieux
affidavit suggests that Palazzola's "mistake" was actually part of an elaborate,
conspiratorial ruse, manufactured by the Gloucester Police task force to enable
a warrantless search of the Tibolt residence for drugs. Cf. Curzi, 867 F.2d at 43
n. 6 (noting that police may not justify warrantless search by manipulating
events to generate "exigency"). Finally, in the affidavit supporting the search
warrant application submitted on July 27, 1992--presumably premised solely on
the fruits of the warrantless search--the police failed to disclose their prior
investigations of the Tibolt residence for suspected drug activities. Tibolt insists
that the failure to disclose the prior investigations of the residence constituted a
"clear violation" of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978).
1. Substantive Law

20

A motion for new trial based on newly discovered evidence will not be allowed
unless the movant establishes that the evidence was: (i) unknown or
unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv)
likely to result in an acquittal upon retrial. United States v. Ortiz, 23 F.3d 21, 27
(1st Cir.1994); United States v. Natanel, 938 F.2d 302, 313 (1st Cir.1991), cert.
denied, 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). If, however, the
"new" evidence was within the government's control and its disclosure was
withheld, the third and fourth criteria are less stringent:

21 usual locution, taken from Justice Blackmun's opinion in [United States v.]
The
Bagley, [473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ], is that the
nondisclosure justifies a new trial if it is "material," it is "material" only if there is "a
reasonable probability" that the evidence would have changed the result, and a
"reasonable probability" is "a probability sufficient to undermine confidence in the
outcome." Id. at 682 [105 S.Ct. at 3383].... This somewhat delphic "undermine
confidence" formula suggests that [a] reversal [and a remand for new trial] might be
warranted in some cases even if there is less than an even chance that the evidence
would produce an acquittal. After all, if the evidence is close and the penalty

significant, one might think that undisclosed evidence creating (for example) a 33
percent chance of a different result would undermine one's confidence in the result.
And while Bagley appears to give little weight to other factors--such as the degree of
fault on the prosecutor's part and the specificity of the defense request--it is not
entirely clear that these variables must be ignored.
22

United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993), cert. denied, --U.S. ----, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994).
2. Standard of Review

23

The denial of a motion for new trial is reviewed only for manifest abuse of
discretion. See United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980).
The instant motion for new trial triggers a two-tier inquiry. First, to the extent
the "new" evidence pertains to the disposition of the pretrial motion to suppress
financial records, wherein the district court was the trier of fact, Tibolt
confronts the daunting task of demonstrating that the district court committed
clear error in determining that the "new" evidence would not have altered its
pretrial factual findings. Zapata, 18 F.3d at 975 (noting that factual findings and
credibility determinations relating to suppression issues are normally for the
trier of fact). Second, Tibolt must show that the "new" evidence would so
undermine the government's case as to give rise to a "reasonable" probability of
acquittal upon retrial. Sepulveda, 15 F.3d at 1220.6
3. The Incident Cards

24

We cannot say that the district court ruling constituted a manifest abuse of
discretion. The district court found, inter alia, that the police incident reports
would not suffice to undermine Officer Palazzola's credibility; hence, were not
likely to result in an acquittal. Tibolt, 868 F.Supp. at 382. Nor are we persuaded
that Palazzola perjured himself at the suppression hearing. Rather, he testified
simply that he could not remember having been at the Dombrowski residence
prior to July 27, 1992. In fact, the incident cards show that he was sent there on
but one occasion--three years before the pretrial suppression hearing. Further,
this incident card did not even compel the conclusion that Palazzola went to, or
secured, the Dombrowski residence on that prior occasion. Thus, the district
court was entitled to find that the incident cards did not undermine Palazzola's
claimed lack of memory. Cf. Natanel, 938 F.2d at 313 (noting somewhat lesser
burden on new-trial movant where evidence shows witness's prior testimony
was "deliberately false"). Given their marginal direct probative value, we
cannot say that the incident cards alone were sufficient to generate a

"reasonable" probability that Tibolt would be acquitted upon retrial. Cf.

Sepulveda, 15 F.3d at 1220 n. 5 (noting that newly discovered evidence
pertaining exclusively to a government witness's credibility rarely warrants new
trial).
4. The Lemieux Affidavit
25

The district court found the Lemieux affidavit similarly inconclusive. Although
the affidavit might contribute to a plausible inference of police conspiracy, it
certainly did not compel such a finding, especially since its temporal relevance
is so unclear. For one thing, it is not unreasonable to think that Lemieux may
have been imprecise in recollecting the sequence of the events which had
occurred a year and a half earlier. That is to say, there is nothing in the affidavit
to suggest but what Lemieux may have been remembering that Tibolt was
arrested and that an informant's tip simply corroborated what the officers
themselves accidentally discovered. Nor does the Lemieux affidavit, vague as it
is, make it probable that an acquittal would result upon retrial.

26

In all events, we need not rest our decision solely on the "credibility" ground,
since the district court found also--with respect to the information in the
Lemieux affidavit--that Tibolt had not met the first two prongs of the Ortiz test.
See Natanel, 938 F.2d at 313 (failure to establish any of the four Ortiz factors
defeats motion for new trial). The court further found that Tibolt had not shown
that this "new" evidence was either unknown or unavailable at the time of the
pretrial suppression hearing, nor that Tibolt had exercised due diligence to
discover the evidence earlier. See Tibolt, 868 F.Supp. at 382 ("What is more,
the government proffered at the suppression hearing the fact that Tibolt's home
had been the subject of a local drug investigation before the search, and made
available to Tibolt one of the officers involved in that investigation for
questioning."). At the pretrial suppression hearing, moreover, the government
disclosed to the defense that Officer Williams participated in a previous task
force surveillance of the Tibolt residence, and that "at that time there were some
reports of possible drug activities involving that house." (Emphasis added.)
This disclosure certainly should have alerted Tibolt to the probability that an
informant was involved. Yet Tibolt failed to pursue information relating to
whether the warrantless search of July 27, 1992 was a mere "ruse" designed to
fabricate a showing of probable cause. Since the finding that Tibolt failed to
exercise due diligence was not clearly erroneous, see Zapata, 18 F.2d at 975, he
may not rely on this evidence to mount a renewed attack on the warrantless
search or the search warrant application.7

27

The district court judgment is affirmed.

The warrant application related the following grounds: (1) an intrusion alarm
was reported by J.K. Systems to the Gloucester Police Department; (2) Officers
Palazzola and Williams responded to the alarm report and found a door open;
(3) the officers entered the home to check the premises for intruders; and (4) a
marijuana-growing facility was found in the cellar

The government would have us characterize this warrantless entry as a socalled "community caretaker" search, a warrant exception applicable to
searches "totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute." Cady v. Dombrowski,
413 U.S. 433, 441, 447-48, 93 S.Ct. 2523, 2528, 2530-31, 37 L.Ed.2d 706
(1973). In light of our alternative disposition, we need not consider the
"community caretaker" exception. But see id. at 439, 93 S.Ct. at 2257 (noting
"constitutional difference" between search of home and search of automobile);
see also United States v. Bute, 43 F.3d 531, 535 (10th Cir.1994) (reading Cady
as applying only to searches of automobiles, not homes); Erickson, 991 F.2d at
532 (same); United States v. Pichany, 687 F.2d 204, 209 (7th Cir.1982) (same)

On appeal, Tibolt asserts no direct challenge to the objective "reasonableness"

of Palazzola's putative mistake--purportedly caused by the juxtaposition of the
Dombrowski mailbox and the entrance to Tibolt's second driveway--in
investigating the Tibolt residence, instead of Dombrowski's, for a burglary in
progress. Rather, he questions only whether Palazzola, despite his protestations
to the contrary, knowingly used this fortuitous circumstance as a pretext for
conducting a warrantless search for drugs as part of an ongoing task force
investigation targeting the Tibolt residence. The only evidence of such a ruse,
however, was presented in his post-conviction motion. See infra Section II.B.
At the pretrial hearing, the inquiry into Palazzola's state of mind necessarily
turned, for the most part, on the trial court's observation of Palazzola's
demeanor, and its credibility determination, matters uniquely within the
province of the trier of fact. United States v. Zapata, 18 F.3d 971, 975 (1st
Cir.1994)

Tibolt cites cases involving various external indicia of a "break," see, e.g.,
Commonwealth v. Fiore, 9 Mass.App.Ct. 618, 403 N.E.2d 953, 955 (upholding
warrantless search where outer door found broken off hinges), cert. denied, 449
U.S. 938, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980), but no alarm system
activation. See Erickson, 991 F.2d at 530, 533 (noting that government, on
appeal, had conceded that no "exigent circumstances" had been shown, given
the absence of any activated security alarm; no visible sign of forced entry;
witness reports that suspected burglars had departed area 30 minutes before

police officers' arrival; and officers' failure to "knock and announce" before
entry); United States v. Moss, 963 F.2d 673, 677, 679 (4th Cir.1992)
(invalidating search because "the Government has formally conceded that this
is not an 'exigent-circumstances case' and does not seek to uphold the search
here on that basis," given that police officer observed "no [external] indication
that any illegal occupant was inside" the cabin); Commonwealth v. Bates, 28
Mass.App.Ct. 217, 548 N.E.2d 889, 892-93 (1990) (invalidating search where
police did not even suspect an ongoing crime, but were merely investigating a
"missing person" report, after waiting over three hours before investigating
missing person's apartment); State v. Morgavi, 58 Wash.App. 733, 794 P.2d
1289, 1292-93 (1990) (invalidating search based on police observation of "a car
in front of the garage, opened and partially broken doors to the garage, an open
back door to the house and an open side door to the garage," but distinguishing
cases where "the police were summoned to the premises by concerned
neighbors who had witnessed the burglaries and the flight of suspects"). We
think it clear that the activation of an alarm system is an external "sign" of a
possible forced entry
5

Although the Dombrowski residence bore a "JK Security" sticker, and the
Tibolt residence an "ADT Security" sticker, there was no evidence that
Palazzola had been informed by the dispatcher that JK Security had reported
the alarm. Further, while dispatchers sometimes write the name of the reporting
security company on the incident cards, see infra Section II.B., the
investigating officers do not receive these cards for completion until after their
investigation of the alarm report. In any event, Tibolt has not raised this matter.
See supra note 3

We assume, without deciding, that the "new" evidence was within the
government's control and potentially subject to disclosure. But see infra Section
II.B.4 (noting that government did disclose essential information, later
reiterated in Lemieux affidavit, at pretrial suppression hearing)

As noted above, see supra p. 4, Tibolt not only challenges the pretrial
determination that Palazzola's warrantless search was valid, but cites Franks v.
Delaware as authority for a direct challenge to the subsequent search warrant,
which was premised entirely on the fruits of the earlier warrantless search. A
defendant is not entitled to a Franks evidentiary hearing, however, absent a
"substantial preliminary showing (1) that a false statement [or material
omission] in the affidavit [supporting the search warrant application] has been
made knowingly and intentionally, and (2) that the false statement [or material
omission] is necessary for a finding of probable cause." United States v. Scalia,
993 F.2d 984, 987 (1st Cir.1993) (citing United States v. Rumney, 867 F.2d
714, 720 (1st Cir.), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d

702 (1989))
We discern no principled basis for treating the Franks claim differently than
Tibolt's direct challenge to the warrantless search. To the extent the "new"
evidence underlying the Franks hearing request was available prior to trial (i.e.,
the Lemieux affidavit) by the exercise of due diligence, Tibolt's post-trial
Franks request based on that evidence is untimely. See supra Section II.B.4.
The marginal probative value of the incident cards in undercutting Palazzola's
pretrial testimony is insufficient, by itself, to support a "substantial preliminary
showing" that the evidence, if disclosed, would have altered the decision that
there was probable cause to issue a search warrant. See supra Section II.B.3;
see also, e.g., United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995)
(noting that "the 'substantial showing' requirement needed to obtain a Franks
hearing is not lightly met").